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TMI Blog2023 (8) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... lows : (i) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the return filed by the appellant on 22.11.2004 is beyond the time limit prescribed under Section 158BC of the Income Tax Act and hence non-est; when there is no such time limit prescribed therein? (ii) Whether in the facts and circumstances of the case, the Tribunal was correct in distinguishing the decision of the Hon'ble Supreme Court in Assistant Commissioner of Income-Tax v. Hotel Blue Moon [(2010) 321 ITR 362 (SC)] and holding that since the return was not filed within the prescribed time, the notice under Section 143 (2) of the Income Tax Act is not required to be issued to complete the assessment under Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appellate authority which turned unsuccessful as is indicated from Annexure-2. A further appeal was taken to the Tribunal which also stood rejected. The Tribunal found that there is an outer limit of 45 days prescribed for a notice to the return to be filed under Section 158BC and any return filed after the said period would be non-est, thus enabling the assessing officer to proceed for assessment without any further notice under Section 143(2). The Tribunal also found that the absence of notice, if at all relevant would stand cured going by the provisions of Section 292BB, which though brought into the statute later to the assessment order, was merely a procedural clarification. It was further held that Section 292BB gave statutory effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be, apply. A circular of the Central Board of Direct Taxes bearing No.717 dated 14.08.1995 ([1995] 215 ITR (St.) 70, 98) was also noticed. Clause (e) of the Circular delineated the procedure for making block assessment; which mandated that the Assessing Officer shall serve a notice on such person requiring him to furnish within such time, not being less than fifteen days, as may be specified in the notice, a return in the prescribed form and verified and directs further procedure to determine the undisclosed income of the block period to be under the provisions of Sections 142, 143(2) & (3) and 144. Hence, though a block assessment under Chapter XIV-B, the procedure for regular assessment under Chapter XIV has to be followed. It was clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income for a block period under the provisions of section 158BC, the provisions of section 142 and sub-sections (2) and (3) of section 143 are applicable and no assessment could be made without issuing notice under section 143(2) of the Act." 5. It was also held that the words "so far as may be, apply" only mean that the specific provisions mentioned therein applies with all its force and not the other provisions of Chapter XIV, dealing with regular assessment. The said declaration of law was followed in Commissioner of Income Tax v. Laxman Das Khandelwal, [(2019) 417 ITR 325 (SC)]; and Kiran Prakashan v. Department of Income-Tax, [(2017) 391 ITR 31 (Pat)]. 6. On facts it has to be noticed that a notice of hearing under Section 142(1) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count or other documents or any assets requisitioned on or after the 1st day of January, 1997, serve a notice to such person requiring him to furnish within such time not being less than fifteen days but not more than forty-five days, as may be specified in the notice a return in the prescribed form and verified in the same manner as a return under clause (i) of sub-section (1) of section 142, setting forth his total income including the undisclosed income for the block period: 8. Notice under clause (a) (ii) of Section 158BC, as it stands, provides the assessee with a minimum period of fifteen days to file a return and also mandates that the authority shall not provide for a period in excess of forty-five days. It cannot, at all be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9], that a notice is required under Section 143(2). It was held that in the circumstances when there was no return filed pursuant to a notice under Section 142(1), there is a requirement for a further notice under Section 143(2), which provision has been made applicable to Section 158BC. 10. We answer the first two questions of law against the Revenue and in favour of the assessee. The assessment completed under Section 158BC without a notice under Section 143(2) cannot be sustained and the same has to be set aside. However, we notice that the undisclosed income, as disclosed by the assessee, remains on record and is deemed to have been accepted by the Assessing Officer, since it has been held in Hotel Blue Moon (supra) that though Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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